Dermot Ahern (Louth, Fianna Fail)

The Deputy will be aware that an easement such as a right of way is normally expressed or implied. There are three ways of acquiring an easement, the first of which involves the prescription at common law. In such cases, it is necessary to establish the use of an easement from time immemorial which in practice is deemed to be 1189. In general, the courts are willing to presume enjoyment of an easement since 1189 if proof of at least 20 years, or for as long as witnesses can confirm, is available. It is obvious that squatters' rights apply in certain circumstances. However, this presumption can be rebutted by any evidence which shows that the right could not have been enjoyed since 1189.

The second means of acquiring an easement involves the prescription under the doctrine of lost modern grant which is the subject of the amendments before the House. It was developed at the end of the 18th century. If one can establish that an easement has been used for at least 20 years, the court is willing to assume, on the basis of a legal fiction, that a formal grant of the easement by deed was made at some stage but the deed has been lost in the meantime. However, this assumption can be defeated if it can be shown that during the period of use, there was no person who could lawfully have granted the easement.

The third means of acquiring an easement involves the prescription of the Prescription Acts. It appears that the Acts were intended to replace the prescription at common law and the prescription under lost modern grant but failed to do so. The main difference is that under the Prescription Acts, the user period must run right up to the time of the proceedings in which the right is claimed.

A report on the acquisition of easements and profit Àprendre by prescription was produced by the Law Reform Commission in 2002. It stated the law in this area was unnecessarily complicated and recommended that it should be updated and simplified. It identified that the principal defect of prescription at common law and prescription under lost modern grant was the uncertainty to which they gave rise for the purchasers of property. In other words, a purchaser of property could find himself or herself bound by rights which he or she had no means of discovering by making reasonable inquiries or inspections. The risk arises from the fact that it is possible to claim an easement by these means, even though the right is not being exercised at the time and may not have been exercised for many years.

Many of the complexities in this area in Ireland and probably in the United Kingdom also relate to the acquisition and exercise of rights of way over property. I suppose these complexities have been the source of much litigation during the years. I was involved in a famous case which received national publicity. It proved beyond doubt the idea that "once a right of way, always a right of way", even if the right of way has not been used for many years. In the case to which I refer, evidence was procured and produced in the High Court to show that the right of way in question had been used in the times of Fionn MacCumhaill. That is what was said, at least, although I am not sure if the evidence stood up. It was argued that according to the Brown Bull of Cooley, the pass in question - the bóthar maol, as it was called - was used to arrange a retreat back to Sligo.

The Law Reform Commission concluded that there was no virtue in retaining prescription at common law or prescription under lost modern grant and recommended their abolition. The new scheme proposed by it, to which statutory effect is being given in the Bill, is based on continuous use over a 12-year period. When the lack of flexibility this would involve was discussed by the select committee, it was agreed to reconsider the matter. Following a review of the relevant provisions, it is now proposed to reintroduce an element of flexibility which was available in the case of prescription under lost modern grant. The proposed new section 35(3) provides that "where the relevant user period was not immediately before the commencement of the action" to establish the existence of an easement, the court may nonetheless make an order declaring the existence of the easement if it is satisfied it is just and equitable to do so. As I said, this will permit the court to have regard to factors such as long use of an easement, even if that use had been discontinued prior to the commencement of the action.

See this speech in context